Memo warns of 'fatal' flaws in WOTUS rule

WASHINGTON, July 30, 2015 - Internal documents released by a House committee show the Army Corps of Engineers questioning the legal and technical basis for the Obama administration’s Clean Water Act rule just weeks before its release.

An April 27 memorandum that the House Oversight and Government Reform Committee released on Thursday along with the other internal Corps documents warned that the draft “waters of the United States” (WOTUS) rule had “fatal” problems that would make it difficult to implement or defend in court.
Leaders of the committee wrote EPA Administrator Gina McCarthy on Thursday, demanding that she specify whether the administration addressed each of the issues raised by the Corps before finalizing the rule. McCarthy told the committee at a hearing Wednesday that the EPA had satisfied the Corps of Engineers concerns.

The rule is now being challenged in a dozen lawsuits filed by states, agriculture and other business interests, environmental groups and others. The lawsuits were consolidated this week in the 6th U.S. Circuit Court of Appeals, based in Cincinnati. The documents the committee released Thursday are stamped "litigation sensitive."

The chairman of the Senate Environment and Public Works Committee, Jim Inhofe, R-Okla., quoted from the internal memos in a letter Monday to to the assistant secretary for the Army who oversees the Corps, Jo-Ellen Darcy. Inhofe didn’t release the memos, but he told Darcy the documents show the “rule is lacking factual, technical and legal support.”

Maj. Gen. John Peabody, the deputy commanding general for civil and emergency operations for the Corps, said in the April memo to Darcy that the draft rule “contradicts long-standing and well-established legal principles undergirding” the way the Clean Water Act is enforced.

“The rule’s contradictions with legal principles generate multiple legal and technical consequences that in the view of the Corps, would be fatal to the rule in its current form.”

A May 15 memorandum then raised a series of concerns with the economic analysis and technical support documents for the rule. Both documents, Peabody said, were “flawed in multiple respects.” He noted that the Corps of Engineers had only been provided the draft final versions two weeks earlier.

“In the Corps’ judgment, the documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies, and logical inconsistencies,” the memo says. “As a result, the Corps’ review could not find a justifiable basis in the analysis for many of the documents’ conclusions.”

Peabody also said the Corps had no role in analyzing the data that EPA used in drafting the documents and that the Corps logo should be removed from them. Peabody closed the memo by saying the Corps stood ready to help the EPA “develop logically supportable conclusions for these documents, if and when requested.”

The EPA on Thursday released a joint memorandum from McCarthy and Darcy to top agency staff calling on them to help implement the rule “in the most effective and efficient way possible.”

The memo said the rule would “improve the process of identifying waters covered under the CWA, and making jurisdictional determinations and permit decisions effectively and efficiently.”

In response to the House committee letter, the EPA said in a statement that the EPA and Corps of Engineers ”worked closely and carefully to make sure that all concerns surrounding the Clean Water Rule were addressed before finalization.”

The memos are likely to be used by Republicans in building a case for delaying implementation of the rule. Provisions in House and Senate appropriations bills for EPA and the Corps would bar the agencies from enforcing the rule during the 2016 fiscal year, which starts Oct. 1.

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